DNA testing flaws concern attorneys

In the late 1990s, the FBI began reviewing forensic evidence in about 250 cases nationwide, focusing mostly on homicides and sexual assaults. In 107 of the cases, including Benjamin Herbert Boyle's, nobody notified defense attorneys of the reviews, or lawyers discovered them after their clients died, according to federal open records obtained by The Washington Post.

Nearly 30 years ago, Potter County jurors sent Benjamin Herbert Boyle to death row for killing a 20-year-old hitchhiker. Two years after Boyle’s 1997 execution, his Amarillo attorney discovered the case was not over.

In the late 1990s, the FBI began reviewing forensic evidence in about 250 cases nationwide, focusing mostly on homicides and sexual assaults. In 107 of the cases, including Boyle’s, nobody notified defense attorneys of the reviews, or lawyers discovered them after their clients died, according to federal open records obtained by The Washington Post.

In Boyle’s case, independent reviewer Cathryn L. Levine said the testimony of FBI Special Agent Michael P. Malone was flawed, according to a May 1999 U.S. Department of Justice report.

On Oct. 15, 1985, police found waitress Gail Lenore Smith of Fort Worth under brush near the Canadian River bridge with her hands and feet bound with duct tape and her head beaten. A day before, she hitched a ride with Boyle, 53, at a rest stop near Fort Worth and headed to Amarillo to visit her mother, Smith’s relatives told police. Boyle, of Canute, Okla., also faced charges in the 1981 stabbing and rape of a St. Louis woman who survived the attack, and California police suspected him in a 1985 murder in Nevada County.

But in the Potter County case, Malone did not perform the appropriate tests in “a scientifically acceptable manner” on hair and fiber samples. Nor did he understand the specific microscope used in his investigation, the report said.

Despite the age of the case, Boyle’s trial attorney, William McKinney, said Friday he remembers having no notice of the retesting until the November 1999 letter arrived at his office — two years after his client’s execution.

The 1990s brought a wave of forensic and expert witness reviews across the country, McKinney said.

In Boyle’s case, for instance, the former pathologist who performed Smith’s autopsy, Dr. Ralph R. Erdmann, was sentenced to 10 years’ probation in 1992 for seven felony counts involving falsified autopsies in various Texas counties.

“If you just look at what all has happened in the area of expert witnesses, the Houston crime lab was essentially shut down because of it,” he said. “We now have laws requireing certain qualifications. It’s been a slow process.”

In the November 1986 capital murder trial, McKinney knew his case would be a hard sell after the jury saw prosecutors’ evidence, including Boyle’s fingerprints on a roll of duct tape found in his truck they said matched the tape found on the victim.

there was some of the toughest testimony I’ve ever been confronted with.”

In recent years, arson and infant death convictions have concerned defense attorneys and defendant rights’ advocates the most.

The charges might not send defendants to death row, but prosecutors could still lead juries to convictions with science that is flat out wrong or that is described as being much more accurate than it really is, said Rebecca Bernhardt, policy director at the Texas Defender Service.

Shaken baby syndrome, in particular, has come under attack recently, as well as fire investigations that attempt to determine whether a blaze was

the product of arson, she said.

“After conviction, there is no sufficient mechanism for communication” between prosecutors and the defense, she said.

James Farren, Randall County criminal district attorney, was the homicide prosecutor for the 47th District Attorney’s Office during part of the time.

Farren wrote in an Amarillo Globe-News opinion piece he was certain of Boyle’s guilt.

“The (Washington Post) article identifies hair and fiber tests and testimony as the supposedly flawed work,” Farren said. “In Boyle’s case, the fingerprint work was done by the Special Crimes Unit and has never been questioned.”

He said more than 40 items of physical evidence found in the cab of Boyle’s truck showed Smith had been severely beaten in his vehicle.

Farren also mentioned Friday police found Boyle’s fingerprints in her blood on the duct tape.

“Let’s further assume you were a juror at his trial and heard testimony about the evidence listed above,” he said.

“After you returned your verdict of guilty and death, would you really believe justice had been ‘delayed and denied’ to Boyle because of a dispute over the accuracy of the hair and fiber testimony?”